The Intellectual Property of Farming
By Andrew Moreton, 06.27.2016

After almost six years practicing as an intellectual property (IP) attorney at Baker & McKenzie in Dallas, I returned home to work for our family farm in Charleston, Missouri this spring. Moreton Partnership is a 5,000 acre corn, wheat, and soybean row crop operation located along the Mississippi River in Southeast Missouri. My great-grandfather Carleton Moreton started farming in this area in the 1930s, and now I am the fourth generation of Moreton to farm. One of the first things I noticed after returning home is the vast amount of unprotected data that a modern farm generates—data that needs to be protected and legally attributed as the farm’s intellectual property. In any other industry, this would’ve happened years ago.

A farm’s IP is much more difficult to define – and therefore value – than IP in other industries, or even other IP within the agricultural industry, which I believe is part of the reason that farms have been slow to protect their IP. Equipment manufacturers such as John Deere or Case IH can protect their new machinery and designs with utility and design patents. Seed companies such as Pioneer can protect newly developed plant varieties with plant patents. But these protections are not available to farms.

A farm’s primary business is not designing and selling new equipment or developing new seed varieties, or even differentiating its grains from those of its neighbors. It is growing and selling plants that are inherently similar and by definition, commodities. But growing and selling crops successfully requires a lot of institutional knowledge and data to make the right decisions – more often that not on-the-spot. How do you measure and place a value on this? On a farm’s best practices and processes, most of which are result of multiple generations passing down knowledge on the land?

Practically every piece of equipment that a modern farm uses generates data. When a seed was planted, what was the weather at the time, the soil temperature, fertilizers used, when it was irrigated – these are just a few examples of information that is generated and collected as a result of a few decisions. All of these data points can be correlated with the crop’s yield, and if collected year after year, all of the sudden you can get a pretty specific understanding of what works best on a particular field.

It’s time for farms to begin thinking of the data that is generated and collected on their farms every day as their own IP. It is not a matter of being forward-thinking, it’s about competing in an environment where every single dollar counts and where a detailed, accurate farm P&L can mean better terms on a loan.

The key to protecting (and subsequently valuing), a farm’s IP is ensuring a) the exclusive ownership of any agronomic, financial, and operational data collected on the farm and b) the easy access to organized, accurate data. Exclusivity is the only way in which we’ll be able to monetize our IP if we want to sell it (and exclusivity ensures that this choice is the farm’s and farm’s alone). It shouldn’t be owned by the equipment manufacturers, the seed companies, or even the software companies that help capture it. But before we can commercialize our farm’s information, we need the technology – and discipline – to collect and organize it. Gone are the days of writing notes on pieces of paper that are later lost, or saying “it’s all up in my head.”

It’s up to us, farmers, to understand data policies and to choose to work with companies we trust and have researched thoroughly. It’s our data, and we stand to benefit from it in numerous ways. It may not be as shiny as a new combine or as imposing as a couple hundred acres of land, but it’s just as valuable, if not more.

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